Unassociated Document


    THE
      SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
      HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
      AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOTE BE SOLD OR OTHERWISE
      DISTRIBUTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR
      AN
      OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION
      IS NOT REQUIRED UNDER SUCH ACT AND LAWS.

    


    


    AMENDED
      AND RESTATED

    WARRANT
      TO PURCHASE STOCK

    


    Issuer:
      GSV, Inc., a Delaware corporation

    Number
      of
      Shares: 1,142,857 subject to adjustment as set forth below

    Class
      of
      Stock: Common Stock, $.001 par value per share 

    Exercise
      Price: $.70, subject to adjustment as set forth below

    Original
      Issue Date: As of May 11, 2004

    Re-Issue
      Date: As of May 10, 2008

    Expiration
      Date: May 10, 2009

    


    THIS
      WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other good
      and valuable consideration, this Warrant is issued to D. Emerald Investments
      Ltd., a corporation organized and existing under the laws of Israel (“Holder”)
      by GSV, Inc., a Delaware corporation (the “Company”).

    


    Subject
      to the terms of the Purchase Agreement dated as of May 11, 2004, by and between
      the Company and the Holder (the "Purchase Agreement") and subject to the terms
      and conditions hereinafter set forth below, the Holder is entitled upon
      surrender of this Warrant and the duly executed Notice of Exercise form annexed
      hereto as Appendix
      1,
      at the
      office of the Company, 191 Post Road West, Westport, Connecticut 06880, or
      such
      other office as the Company shall notify the Holder of in writing (the
“Principal Office”), to purchase from the Company One Million, One Hundred and
      Forty-Two Thousand and Eight Hundred and Fifty-Seven (1,142,857), duly
      authorized, validly issued, fully paid
      and
      non-assessable shares, free and clear of all liens, pledges, security interests,
      charges, and encumbrances (the “Shares”) of the Company’s common stock, $.001
      par value per share (“Common Stock”). The purchase price per Share shall be the
      Exercise Price, subject to adjustment as set forth in Article 2 below. This
      Warrant may be exercised in whole or in part at any time and from time to time
      until 5:00 PM, Eastern time, on May 10, 2009 (the “Expiration Date”). Until such
      time as this Warrant is exercised in full or expires, the Exercise Price and
      the
      number of Shares shall be subject to adjustment as hereinafter
      provided.

    


    


    ARTICLE
      1

    


    EXERCISE

    


    1.1    Method
      of Exercise.
      Holder
      may exercise this Warrant, in whole or in part, by delivering a duly executed
      Notice of Exercise in substantially the form attached as Appendix 1
      to the
      Principal Office of the Company. Holder shall also deliver to the Company a
      certified check for the aggregate Exercise Price for the Shares being purchased.
      

    


    
      
         

      

      
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    1.2    Delivery
      of Certificate and New Warrant.
      Promptly after Holder exercises this Warrant, the Company shall issue to the
      Holder the Shares to which the Holder shall be entitled thereby, duly
      authorized, validly issued, fully paid, non assessable and free and clear of
      all
      liens, pledges, security interests, charges and encumbrances and shall deliver
      to Holder certificates for the Shares acquired and, if this Warrant has not
      been
      fully exercised and has not expired, a new Warrant representing the right to
      purchase the balance of the Shares not yet so acquired. Upon receipt by the
      Company of the Notice of Exercise and the aggregate Exercise Price, the Holder
      shall be deemed to be the holder of the Shares issuable upon such exercise,
      notwithstanding that the share transfer books of the Company shall then be
      closed and that certificates representing such shares shall not then be actually
      delivered to the Holder.

    


    1.3    Replacement
      of Warrants.
      On
      receipt of evidence reasonably satisfactory to the Company of the loss, theft,
      destruction or mutilation of this Warrant and, in the case of loss, theft or
      destruction, on delivery of an indemnity agreement reasonably satisfactory
      in
      form and amount to the Company or, in the case of mutilation, on surrender
      and
      cancellation of this Warrant, the Company at its expense shall execute and
      deliver, in lieu of this Warrant, a new warrant of like tenor. The term
“Warrant” as used herein shall include this Warrant and any warrants
      subsequently delivered in substitution or exchange therefore as provided
      herein.

    


    1.4    Sale,
      Merger, or Consolidation of the Company.
      

    


    1.4.1    “Acquisition”.
      For the
      purpose of this Warrant, “Acquisition” means any sale, transfer, exclusive
      license, or other conveyance or disposition of all or substantially all of
      the
      assets or business of the Company, or any securities transaction,
      reorganization, consolidation or merger of the Company in which the holders
      of
      the Company’s outstanding voting equity securities immediately prior to the
      transaction beneficially own less than 50.1% of the outstanding voting equity
      securities of the surviving or successor entity immediately after the
      transaction.

    


    1.4.2    Assumption
      of Warrant.
      This
      Warrant shall automatically and immediately be binding upon any successor or
      surviving entity succeeding the Company as a result of an Acquisition (other
      than an Acquisition in which the consideration received by the Company or its
      stockholders, as the case may be, consists solely of cash). Upon the closing
      of
      any such Acquisition, this Warrant shall be exercisable for the same securities
      and property as would be payable for the Shares issuable upon exercise of the
      unexercised portion of this Warrant as if such Shares were outstanding on the
      record date for the Acquisition and subsequent closing. The Exercise Price
      shall
      be adjusted accordingly. 

    


    


    ARTICLE
      2

    


    ADJUSTMENTS

    


    2.1    Stock
      Dividends, Splits, Etc.
      If the
      outstanding shares of the Company's Common
      Stock at any time while this Warrant remains outstanding and unexpired shall
      be
      subdivided or split into a greater number of shares or a dividend in Common
      Stock shall be paid in respect of the outstanding Common Stock, the Exercise
      Price in effect immediately prior to such subdivision or at the record date
      of
      such dividend shall, simultaneously with the effectiveness of such subdivision
      or split or immediately after the record date of such dividend (as the case
      may
      be), be proportionately decreased. If the outstanding shares of Common Stock
      shall be combined or reverse-split into a smaller number of shares, the Exercise
      Price in effect immediately prior to such combination or reverse split shall,
      simultaneously with the effectiveness of such combination or reverse split,
      be
      proportionately increased. When any adjustment is required to be made in the
      Exercise Price, the number of Shares purchasable upon the exercise of this
      Warrant shall be changed to the number determined by dividing (i) an amount
      equal to the number of Shares issuable upon the exercise of this Warrant
      immediately prior to such adjustment, multiplied by the Exercise Price in effect
      immediately prior to such adjustment, by (ii) the Exercise Price in effect
      immediately after such adjustment.

    


    
      
         

      

      
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    2.2    Reclassification,
      Exchange or Substitution.
      Upon
      any reclassification, recapitalization, exchange, substitution, reorganization
      or other event that results in a change of the number and/or class of the Common
      Stock, lawful provision shall be made so that Holder shall be entitled
      thereafter to receive, upon exercise of this Warrant, the number and kind of
      securities and property that Holder would have been entitled to receive if
      this
      Warrant had been exercised immediately before such reclassification, exchange,
      substitution, reorganization or other event. In any such case, appropriate
      adjustment (as reasonably determined by the Board of Directors of the Company)
      shall be made in the application of the provisions set forth herein with respect
      to the rights and interests thereafter of Holder such that the provisions set
      forth in this Section 2 (including provisions with respect to the Exercise
      Price) shall thereafter be applicable, as nearly as is reasonably practicable,
      in relation to any shares of stock or other securities or property thereafter
      deliverable upon the exercise of this Warrant. The provisions of this
      Section 2.2 shall similarly apply to successive reclassifications,
      exchanges, substitutions, reorganizations or other events.

    


    2.3    Price
      Adjustment.
      No
      adjustment in the per share Exercise Price shall be required unless such
      adjustment would require an increase or decrease in the Exercise Price of at
      least $0.01; provided, however, that any adjustments that by reason of this
      subsection are not required to be made shall be carried forward and taken into
      account in any subsequent adjustment. All calculations under this Section 2
      shall be made to the nearest cent or to the nearest 1/100th of a share, as
      the
      case may be.

    


    2.4    No
      Impairment.
      The
      Company shall not, by amendment of its Certificate of Incorporation, as amended,
      or through a reorganization, transfer of assets, consolidation, merger,
      dissolution, issue, or sale of securities or any other voluntary action, avoid
      or seek to avoid the observance or performance of any of the terms, covenants,
      stipulations or conditions to be observed or performed under this Warrant by
      the
      Company, but shall at all times in good faith assist in carrying out of all
      the
      provisions of this Article 2 and in taking all such action as may be necessary
      or appropriate to protect Holder’s rights under this Article against impairment.
      The Company further agrees that it will maintain and reserve at all times,
      free
      from pre-emptive rights, and after giving effect to all other options, warrants,
      convertible securities and other rights to acquire shares of the Company, such
      number of authorized but unissued Shares to permit the exercise of this Warrant
      for the full number of Shares herein and so that this Warrant, and any
      subsequent Warrants issued to the Holder, may be exercised without additional
      authorization. The Company further covenants that the Shares, when issued
      pursuant to the exercise of this Warrant, will be dully authorized, validly
      issued, fully paid and non-assessable shares, free and clear of all liens,
      pledges, security interests, charges, and encumbrances.

    


    
      
         

      

      
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    2.5    Adjustments
      for Diluting Issuances.
      If the
      Company shall issue, after the Issue Date set forth on the face of this Warrant,
      any Equity Securities (as defined below) at a price per share or conversion
      price or exercise price lower than the Exercise Price in effect immediately
      before such Equity Securities are issued, (as
      such
      Exercise Price may have been previously adjusted pursuant to the provisions
      of
      this Article 2), the Exercise Price for the Shares of Common Stock issuable
      hereunder shall be adjusted to equal the price per share or the conversion
      price
      or the exercise price of such Equity Securities, as applicable. The foregoing
      shall not apply to issuance of common
      stock or preferred stock
      the
      proceeds of
      which
      will be payable to the Company in immediately available funds upon issuance
      thereof.

    


    For
      purposes of this Warrant, the term “Equity Securities” shall mean any securities
      evidencing an ownership interest in the Company, or any securities having voting
      rights in the election of the Board of Directors of the Company not contingent
      upon default, or any securities convertible into or exercisable for any class
      of
      shares of the Company, or any agreement or commitment to issue any of the
      foregoing.

    


    2.6    Fractional
      Shares.
      No
      fractional Shares shall be issuable upon exercise or conversion of the Warrant
      and the number of Shares to be issued shall be rounded up to the nearest whole
      Share.

    


    2.7    Certificate
      as to Adjustments.
      Upon
      the occurrence of each event that results in an adjustment of the Exercise
      Price
      or number of Shares, the Company, at its sole cost and expense, shall promptly
      compute such adjustment, and furnish Holder with a certificate of its Chief
      Financial Officer setting forth such adjustment and the facts upon which such
      adjustment is based. The Company shall, upon written request, furnish Holder
      a
      certificate setting forth the Exercise Price and the number of Shares resulting
      from such event and setting forth in reasonable detail the method of calculation
      and the facts upon which such calculation is based. 

    


    


    ARTICLE
      3

    


    COVENANTS
      OF THE COMPANY

    


    3.1    Notice
      of Certain Events.
      If the
      Company proposes at any time (a) to
      declare any dividend or distribution upon its Common Stock, whether in cash,
      property, stock, or other securities and whether or not a regular cash dividend;
      (b) to
      offer for subscription pro rata to the holders of its Common Stock any
      additional shares of stock of any class or series or other rights; (c) to
      effect any reclassification, recapitalization, exchange or substitution of
      any
      of its securities; or (d) to
      merge or consolidate with or into any other corporation, or sell, lease,
      license, or convey all or substantially all of its assets or business, or to
      liquidate, dissolve or wind up; then, in connection with each such event, the
      Company shall give Holder (1) at least 15 days’ prior written notice
      of the date on which a record will be taken for such dividend, distribution,
      or
      subscription rights (and specifying the date on which the holders of securities
      of the Company will be entitled to receive such dividend, distribution or
      subscription rights) or for determining rights to vote, if any, in respect
      of
      the matters referred to in (c) and (d) above; and (2) in the case of the
      matters referred to in (c) and (d) above at least 20 days’ prior written
      notice of the date when the same will take place (and specifying the date on
      which the holders of securities of the Company will be entitled to exchange
      their securities of the Company for securities or other property deliverable
      upon the occurrence of such event).

    


    
      
         

      

      
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    ARTICLE
      4

    


    MISCELLANEOUS

    


    


    4.1    Legends.
      This
      Warrant and the Shares shall be imprinted with a legend in substantially the
      following form:

    


    THIS
      SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
      SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER STATE SECURITIES LAWS AND
      MAY
      NOT BE SOLD OR OTHERWISE DISTRIBUTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
      RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER
      THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND LAWS.

    


    4.2    Compliance
      with Securities Laws on Transfer.
      This
      Warrant and the Shares may not be transferred or assigned in whole or in part
      without compliance with applicable federal and state securities laws by the
      transferor and the transferee (including, without limitation, the delivery
      of
      investment representation letters and legal opinions reasonably satisfactory
      to
      the Company, as reasonably requested by the Company). The Company shall not
      require Holder to provide an opinion of counsel if the transfer is to an
      affiliate of Holder or if (i) there is no material question as to the
      availability of current information as referenced in Rule 144(c), (ii)
      Holder represents that it has complied with Rule 144(d) and (e) in
      reasonable detail, (iii) the selling broker represents that it has complied
      with
      Rule 144(f), and (iv) the Company is provided with a copy of Holder’s
      notice of proposed sale.

    


    4.3    Transfer
      Procedure.
      Subject
      to the provisions of Section 4.2, Holder may transfer all or part of this
      Warrant and/or the Shares issuable upon exercise of this Warrant at any time
      by
      giving the Company notice of the portion of the Warrant being transferred
      setting forth the name, address and taxpayer identification number of the
      transferee, if applicable and
      surrendering this Warrant to the Company for reissuance to the transferee(s)
      (and Holder if applicable in case of a partial transfer).

    


    4.4    No
      Rights as Stockholder.
      Until
      the exercise of this Warrant, the registered Holder of this Warrant shall not
      have or exercise any rights by virtue hereof as a stockholder of the Company.
      

    


    4.5    Successors.
      The
      rights and obligations of the parties to this Warrant will inure to the benefit
      of and be binding upon the parties hereto and their respective heirs,
      successors, assigns, pledgees, transferees and purchasers 

    


    4.6    Headings.
      The
      headings in this Warrant are for purposes of reference only and shall not limit
      or otherwise affect the meaning of any provision of this Warrant. 

    


    
      
         

      

      
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    4.7    Governing
      Law and Jurisdiction.
      This
      Warrant will be deemed to have been made and delivered in New York City and
      will
      be governed as to validity, interpretation, construction, effect and in all
      other respects by the internal laws of the State of New York. Each of the
      Company and Holder hereby (i) agrees that any legal suit, action or proceeding
      arising out of or relating to this Agreement will be instituted exclusively
      in
      New York State Supreme Court, County of New York or in the United States
      District Court for the Southern District of New York, (ii) waives any objection
      to the venue of any such suit, action or proceeding and the right to assert
      that
      such forum is not a convenient forum for such suit, action or proceeding, (iii)
      irrevocably consents to the jurisdiction of the New York State Supreme Court,
      County of New York and the United States District Court for the Southern
      District of New York in any such suit, action or proceeding, (iv) agrees to
      accept and acknowledge service of any and all process that may be served in
      any
      such suit, action or proceeding in New York State Supreme Court, County of
      New
      York or in the United States District Court for the Southern District of New
      York and (v) agrees that service of process upon it mailed by certified mail
      to
      its address set forth in Section 4.6 below will be deemed in every respect
      effective service of process upon it in any suit, action or
      proceeding.

    


    4.8    Notices.
      Any
      notice or other communications required or permitted hereunder shall be
      sufficiently given if delivered in person or sent by facsimile or certified
      mail, postage prepaid, if to the Company, to it at GSV, Inc., 191 Post Road
      West, Westport, Connecticut 06880, Attention: President, with a copy to Davis
      & Gilbert LLP, 1740 Broadway, New York, New York 10019, Attention: Ralph W.
      Norton, Esq., and if to Holder, to D. Emerald Investments Ltd., 85 Medinat
      Ha-Yehudim, Herzelia, Israel, Attention: Roy Harel, Manager, with a copy to
      Kantor, Elhanani, Tal & Co., Mozes House, 74-76 Rothschild Blvd., Tel-Aviv
      Israel 65785, Attention: Adv. Dana Yagur.

    


    4.9    Waiver.
      This
      Warrant and any term hereof may be changed, waived, discharged or terminated
      only by an instrument in writing signed by the party against which enforcement
      of such change, waiver, discharge or termination is sought.

    


    4.10    Attorneys’
      Fees.
      In the
      event of any dispute between the parties concerning the terms and provisions
      of
      this Warrant, the party prevailing in such dispute shall be entitled to collect
      from the other party all costs incurred in such dispute, including reasonable
      attorneys’ fees.

    


    4.11    Severability.
      In case
      any one or more of the provisions contained in this Warrant shall be invalid,
      illegal or unenforceable in any respect, the validity, legality and
      enforceability of the remaining provisions contained herein shall not in any
      way
      be affected or impaired thereby. The parties shall endeavor in good faith
      negotiations to replace the invalid, illegal or unenforceable provisions with
      valid provisions the economic effect of which comes as close as possible to
      that
      of the invalid, illegal or unenforceable provisions.

    


    4.12    Restatement.
      This
      Warrant is an amendment and restatement of the Warrant originally issued as
      of
      May 11, 2004, and reissued as of May 10, 2005, by the Company to the Holder
      (the
“Original Warrant”) and shall in all respects substitute for the Original
      Warrant.

     

    
      
         

      

      
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	 	GSV,
              INC.
	 
 	 
 	 
 
	 	By:  	/s/ Gilad
              Gat
	 	
              
Name: Gilad
              Gat
	 	
              Title: Chief
                Executive Officer and President

            


    

     

    
      
         

      

      
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    APPENDIX
      1

    


    NOTICE
      OF EXERCISE

    


    


    1.    The
      undersigned hereby elects to purchase  ____________
      shares
      of the ____________ stock of GSV, Inc. pursuant to Section 1.1 of the attached
      Warrant, and tenders herewith payment of the Exercise Price of such shares
      in
      full.

    


    2.    Please
      issue a certificate or certificates representing said shares in the name of
      the
      undersigned or in such other name as is specified below:

    


    


    ___________________________________________

    (Name)

    


    


    ___________________________________________

    


    ___________________________________________

    (Address)

    


    3.    The
      undersigned represents it is acquiring the shares solely for its own account
      and
      not as a nominee for any other party and not with a view toward the resale
      or
      distribution thereof except in compliance with applicable securities
      laws.

    


    


    
      	 	
              ____________________________________

                    (Signature)

            


    

    


    ____________________

    (Date)

     

    
      
         

      

      
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